Posted
by
EditorDavid
on Saturday March 11, 2017 @11:34AM
from the coercing-cooperation dept.

Andy Smith is a Scotland-based news photographer (and a long-time reader of Slashdot). He writes
Recently the police wanted to seize some of my work photos to use as evidence in a prosecution... Rather than trying (and likely failing) to get a warrant to seize the photos, the prosecutor used a tactic that nobody had heard of before: He got a warrant to seize all of my cameras, computers, memory cards, etc, even though the photos were in a secure location, not at my home or in my possession. I was then given 24 hours to retrieve and hand over the photos, or the police would raid my home and take everything, effectively ending my career.
His blog post describes erasing every computer and memory card, though he believes the police only wanted the leverage that came from threatening to seize them. But the journalists' union advised him to surrender the photos, since otherwise his equipment could be held for over a year -- so he complied. "I regret my decision. Everyone on this side of the case has reassured me that it was the right thing to do, but it wasn't."

"As for the warrant, it remains active, with no time limit. I now conduct my work knowing that the police could raid my home at any time, without warning, and take everything."

You've completely missed the point. While the seizure of the images was an issue, the *real* issue was that they threatened to take away his tools of the trade if he didn't comply, and that the threat is still standing even though he *has* complied and provided them with copies. It's the next step down the slippery slope started with "provide your encyption keys, or we'll lock you up" that could be applied to people they suspected of a crime, only now it's "we think you might have some evidence, even though you didn't actually commit the crime, so hand it over or we'll put you out of work."

Andy Smith might have saved himself a lot of pain, and you can't blame him for that, but he's also absolutely right in his final assessment that it wasn't the right thing to do; this tactic needs to be booted up to higher courts and stopped ASAP. Putting a *suspected* criminal on the spot like that is bad enough, but doing so to someone you *know* is innocent of the crime in question is completely and utterely unacceptable for any country that doesn't want to lay claim to being a police state.

they threatened to take away his tools of the trade if he didn't comply, and that the threat is still standing even though he *has* complied

this tactic needs to be booted up to higher courts and stopped ASAP

So, you expect the same system that permitted this injustice to correct it? Not only that, you expect that same system to outlaw the injustice it committed? There's a dry laugh in my throat right now, filled with sarcasm.

"we think you might have some evidence, even though you didn't actually commit the crime, so hand it over or we'll put you out of work."

Putting a *suspected* criminal on the spot like that is bad enough, doing so to someone you *know* is innocent of the crime in question is completely and utterely unacceptable for any country that doesn't want to lay claim to being a police state.

A government that makes the above demands, is a police state. If the police wield so much power, that they can end the livelihoods of completely innocent people for no more than failing to comply with their demands, (the forced password handover requirement made this a reality years ago), then it is a police state. You can't expect freedom or democracy to survive in that kind of environment. The only real power is the willingness of the thugs to permit it under such a system.

So, you expect the same system that permitted this injustice to correct it? Not only that, you expect that same system to outlaw the injustice it committed? There's a dry laugh in my throat right now, filled with sarcasm.

Yes, precisely because the system is supposed to function that way. Not in that an injustice is committed in the first place, of course. But the whole point of courts is to try to resolve injustices and the whole point of higher courts is to deal with injustices that lower courts bring for any number of reasons. If all of that fails, then either (1) you're simply in the wrong and don't realize it or (2) you're in a police state and the whole system of seeking justice is a farce.

A government that makes the above demands, is a police state. If the police wield so much power, that they can end the livelihoods of completely innocent people for no more than failing to comply with their demands, (the forced password handover requirement made this a reality years ago), then it is a police state.

The issue is that a lower court made a very, very bad decision to grant the warrant and should rightly be smacked down hard for it. However, the tools that the court allows (a broad warrant in collecting evidence for a crime) for the police are a necessary aspect of a justice system when dealing with things like criminal organizations. You seem to believe that we should throw the baby out with the bathwater because the system has failed in one instance.

You can't expect freedom or democracy to survive in that kind of environment. The only real power is the willingness of the thugs to permit it under such a system.

You'd be right if this warrant had been challenged and allowed to stand. Instead, we sadly have compliance to a request because the threat was too great to challenge. We need that when the person involved is a criminal and we need to collect evidence. We also need a means for people like this photographer to challenge unjust warrants. That's where there's a failing. It's not enough, though, to simply dismiss any hope of freedom or democracy because of this instance.

PS - Meanwhile if we do have a clear police state, then, yea, perhaps the answer is suicide in a spectacular fashion as the other poster suggests. Although it hasn't done much to stop the Chinese in Tibet.:/

Imagine if the slaves had that attitude, we wouldn't have Tubman with the under ground railroad. Or if America had that attitude towards WW 1 and 2. Or if our founding fathers had that attitude. You get the point.

Never give up, always fight. It might not benefit you, but it will benefit your children and their children.

It would be up to the higher court to decide, but the UK's system definitely allows for judges in the lower court to be sanctioned although I have no idea what constraints there might be on the limits of those, or how they might be applied if they determined that this was a case of overreach or some such. There are also some specific rules and procedures for the legal system in Scotland, so things might be a little different in the first level of appeal than it might be in England and Wales, but do they sh

This just illustrates the fact that the criminal justice system has become a threat to ordinary non criminal non violent citizens. You think that immigrants, criminals or terrorists are the greatest threat to your security, but actually the greatest threat to you personally is your own countries bureaucracy. We used to think that Russia or the Chinese system were bad but basically the illusion of freedom is just that - an illusion. It is bizarre but the only people likely to have any sympathy for you are the 'hated leftists'. Be careful what propaganda you believe in, corrupt systems and corrupt politicians are not your friend.

I have no beef with Iran. Yes, they're by no means the epitome of freedom, but they also have no reason to prosecute me. Hell, China would work, too. And I guess we all know their track record when it comes to alien concepts like personal freedom.

What matters is that you find a government that isn't interested in cooperating with a government that's out to get you. Like, say, Russia when you're Snowden.

Trump's rhetoric, which his followers lap up, is that the USA is now in an unprecedented state of emergency where Constitutional safeguards might have to be temporarily superseded to protect the American public from a vast assortment of Jihadis, bad hombres, and enemies of the American people (mainstream press) peddling lies and fake news. Until we have a better understanding of the the threats we're facing, i.e. as long as Trump wants.

The travel ban was meant to be the start of that. I'm sure Trump is su

Really? I think that depends on how you define "unreasonable" - or rather it depends on how a judge defines it and given what the US has been up do in recent years I would not trust a US judge's definition to match with mine.

In theory, yes. But police and prosecutors know which judge will be most sympathetic to them, and how to play the game of timings and procedures to make sure their warrant goes up before the right one.

Because this is modded +5 insightful, I'll point out that it is incorrect. If the photographer refused to comply with a subpoena he could be jailed for contempt, and (I am guessing) a search warrant issued. But there is no suggestion that the computers or storage were the instrumentality of the crime, so even assuming corrupt police civil, forfeiture is not the path of least resistance for them to get what they want.
Of course, it seems that the police chose not to issue a production order in this case,

In Canada especially in BC civil forfeiture is now being used as a punishment in some cases when the crown lost the case. Its sounds crazy but http://www.cbc.ca/news/canada/... [www.cbc.ca] there are other cases and even judges has stated on record that what the Civil Forfeiture office is doing goes beyond the punishment but the judges are power less to over turn it.

If only the USA paid attention to the Constitution... Currently you have no rights to unreasonable search at a border, or within 200miles of one... (dont see that limitation mentioned in the constitution)... The NSA and CIA actively spy on US Citizens, as well as the DEA apparently... Police and Federal agencies using things such as Stingrays without a warrant... Trump is pissing all over the first amendment, along with things which forbid profiting from his connections as President... and that's just the t

There is a constitution, it's just that Parliament is supreme and can't be limited by a prior Parliament so the constitution is weak. Basically a Parliament can repeal any law, even those considered part of the Constitution such as the latest treaties and associated enabling acts that turned over some powers to the EU.

And what we're seeing in Turkey isn't looking too hot either, and the Europeans have long been trying to make Turkey out to be a European nation.

Actually, the US has pressed on for Turkish membership in EU for decades:

Washington's support for Ankara on the issue of Turkish membership in the EU became part of the agenda of U.S.-Turkishbilateral relations in the late 1980s. However, it vvas during the course of the next decade that American offcials began to engage inintensive lobbying efforts among key U.S. allies in Europe to promote Turkey's EU aspirations.[...]

And the EU has been seriously entertaining the idea. It's not America's fault: this is like one on your friends talking you into marrying some alcoholic loser. Who's fault is it? Your friend's, or yours for doing it? Sorry, but you're responsible for your own decisions and actions.

It's your own fault of course, but I wouldn't call that person a friend either.

If you continue to call that person a friend, and keep them as a friend, even after they talk you into dumb decisions, then yes, they really are your friend, even if they're not good for you. And what does that say about you when you continue to keep them as a friend and follow their advice?

If you read about halfway through this article you will find that it's all about the US military presence. Only Turkey will tolerate a US base in that region, and since Bush, American leaders have felt the need to impose our 'authority' there.

Both countries win- We get a military base, and Turkey gets an aura of respectability, plus some possible Euro advantages. (And they still don't have to admit to Armenian genocide.)

So is the rest of Europe as bad as the UK, or are we to believe that the UK is somehow a big exception in Europe?

Given how the UK is actively trying to not even be Europe there's a lot going for the exception theory. But there's even more to it than that.

Different government structures around the world ensure there are very different things at play. While I see it as a possibility of every western democracy which has amassed too much power to control their citizens like this, we only ever seem to hear about it happening from members of the 5 eyes (USA, UK, Canada, Australia, and NZ).

Sounds like it's the EU that needs to build a "big, beautiful wall".... It shouldn't be that expensive, because the Greece/Bulgaria border with Turkey isn't that long; it looks like roughly 200 miles judging by a map. Or they could just invade Turkey and seize most of the European part, short of Istanbul; then they'd only need a wall about 25 miles long.

If they're going to hold data-containing devices as evidence for up to a year, they'd better back them up. And once they have a disk image backup, there's no reason to hold onto the actual device, except as economic leverage on the suspect.

In the UK there is no right to a speedy trial. Our legal system moves at glacial pace. There is a massive backlog of electronic equipment that they have taken but not yet examined, so it usually takes them many months or even years to get that far. There is no penalty for them taking a long time, and no way to force them to speed up.

The fact that they just need a few photos relating to one incident is irrelevant. To preserve them as evidence they will have to do a forensic extraction that can't be questioned (e.g. photoshopping) in court. Typically they will also look for evidence of any other crimes, because there is always some. Even if it's just a dodgy banner in the browser cache somewhere, they like to throw a few random child porn or terrorism charges in too, as punishment.

If they did take his stuff, I'd be amazed if he got it back within 2 years. When it does come back, they will probably have wiped it anyway and broken anything delicate like a camera, for which there is no penalty or compensation.

How would that help? He makes his living taking timely photos that are published in the local paper and then largely worthless. It's not about the loss of data, it's the loss of the equipment he needs to work.

This has long been a problem in the UK. The police can easily get warrants that destroy you life, with no compensation or comeback if they turn out to be bogus, and the judiciary are far too often strongly biases in the police's favour.

You can't beat yourself up for what dick heads do man. Just remember enforcement of law always comes down to someone holding a gun to your head. Its basically like you complied with a robber which is the smart thing to do so don't beat yourself up over your decision.

Two weeks ago a senior police officer at a road accident ordered me to stop recording audio and delete any video that Iâ(TM)d already shot. I didnâ(TM)t delete the video so the officer took my press ID card, recorded my details, and told me that my camera would be seized.

Was this illegal activity that might have been captured on video, or was it some kind of security service activity that the authorities didn't want to see the light of day?

The police might just have a policy against letting people film car accidents - it's embarassing when that stuff ends up on youtube, and the number plates and faces are sensitive information. The officer wasn't going to let someone film police at work just because he was a journalist, and when a non-police-person ignored his polite request resorted to the default police tactic of heavy-handed intimidation.

> Rather than trying (and likely failing) to get a warrant to seize the photos, the prosecutor used a tactic that nobody had heard of before: He got a warrant to seize all of my cameras, computers, memory cards, etc

It's known as a writ of assistance and it was part of the reason why we sent a loud Fuck You to His Royal Majesty, by the Grace of God, Defender of the Faith, King George III.

"Doing so would have set a dangerous precedent and would compromise the impartiality of myself and the other press photographers who work at the court. It’s quite foreseeable that one photographer handing over photos would endanger all other photographers at the court as we may be perceived as informers or allies of the police."

The photographers need to be seen as impartial observers, not collectors of evidence that can be used against people. That mean

"Doing so would have set a dangerous precedent and would compromise the impartiality of myself and the other press photographers who work at the court. It’s quite foreseeable that one photographer handing over photos would endanger all other photographers at the court as we may be perceived as informers or allies of the police."

That doesn't hold up. Reporters are supposed to report on what happened truthfully, regardless of which side it favors. By refusing to publish and release these photos, he has biased himself and chosen a side. If it would have embarrassed the police and/or the court, would he have felt compelled to withhold it in order to be "impartial"? No, because that is what a reporter does. But that works both ways. He must report on what is favorable for them as well as what hurts them.

That doesn't hold up. Reporters are supposed to report on what happened truthfully, regardless of which side it favors. By refusing to publish and release these photos, he has biased himself and chosen a side.

Reporters aren't firehoses. They don't list names and faces of everyone they see at rallies. They don't give the names and home address of the police officers. At some point, their job is to cover the story and that often involves leaving a lot of potentially embarrassing or abusable information.

If the police had just kept quiet the photos might have been published. Depends on how graphic they were, and chances are only one in the series would have made it to print, maybe two on the web site.

The problem was created by the police asking. Once the police ask a journalist for something, the journalist can't give it to them because it would make other people unwilling to trust the journalist. Imagine someone gave an interview on condition of anonymity, and the police forced the interviewer to give up t

Something sounds fishy about this. I have a feeling we aren't getting the whole story out of this. Face it, human beings are by nature energy conserving (read lazy) and it would have been a lot easier to ask first, then get the production order. The press hands over photographs and videos to the police as evidence all the time without any problems. Why is it they are trying to make an example out of him? Or has it been he's been doing his best to make trouble for authorities and this is just a clever excuse? It's probably somewhere in between the two extremes, but how far one way or the other is going to be hard to determine with the limited, one sided information that his post gives out.

Remember, understanding is a three edged sword: your side, their side, and the truth. (with apologies to JMS)

If the prosecution, i.e. Queens Counsel, in a criminal trial wants his photographs to use as evidence against someone else, I would expect them to subpoena them.

What they don't do, AIUI, is have the police get a (search) warrant to search the home of an innocent third party. for "evidence".

Maybe standards have slipped in the UK, but I really can't imagine a judge in Scotland approving such a warrant. Some other places in the world I can see it happening, but I wouldn't have thought in Scotland.

But IANAL, not in Scotland, not anywhere. (Even though I play one on TV)

If the prosecution, i.e. Queens Counsel, in a criminal trial wants his photographs to use as evidence against someone else, I would expect them to subpoena them.

They did. He illegally refused to comply. Making him a criminal.

I'm still not a lawyer, but AIUI the judge can find him in contempt of court. I don't know what the penalties are for Contempt of Court in Scotland. Over here you can be fined, and even jailed. A few days in the pokey usually puts people in the right frame of mind to comply with subpoenas and court orders.

What they don't do, AIUI, is have the police get a (search) warrant to search the home of an innocent third party. for "evidence".

Except this criminal is not innocent. He's broke the law.

Thank you Captain Obvious. Criminals are – generally – not innocent. At least of the crime(s) they were convicted for.

So he's been tried, has he? And convicted? AFAICT he might only be in conte

Another Glorious Triumph for the National Socialist Scottish Workers' Party and Police Scotland. All hail the victory of True Scottish National Socialism and the Almighty, 1000 year blockhouse blockhead Fuhrer, Mrs Rab C Nesbitt!

In most countries and states police use overbroad warrants to as a sort of pre-emptive retaliation for the likelyhood that they will fail to get court approval for the illegal or unconstitutional nature of their goal. How come citizens cant do the same thing to the police?

Sure, you can do this. Get a whole raft of lawyers (solicitors), a whole bundle of money and a lot of patience.

That was Mr. Smith's dilemma. Despite having some access to representation (the Journalist's guild), he was heavily outgunned by the Crown. You need to have assets like Kim Dotcom to pull this off.

One thing seems to hold true in every country, from the strictest police state to the most liberal of democracies: Law enforcement always hate to see their authority challenged, and will take action against anyone they believe is doing so.

In any encounter with the police, unless you have actually done something criminal it's probably better to act subservient and do as they say - because if they decide they want to punish you for speaking back, they will always be able to find something to arrest you for.

But police do request warrants, and almost all are granted. Partially because police do know enough law that they make sure everything is in order and the warrant is reasonable on almost every occasion, but also partially because they know enough to play the system on any occasion they do feel the rules need to be bent, how to make sure they get a sympathetic judge, and what key phrases tick the legal boxes.

The police asked for the photographs. The photographer said no. The police went away and asked a judge for a warrant. The judge agreed that a warrant was jusified and issued it.
Scotland is not a police state. It's legal system does have some strange names for things though...

Actually, the police did *NOT* ask for a warrant-- They asked to be allowed to seize all of his electronics, crippling his ability to work-- and then didn't SERVE that warrant, they merely said they would if he didn't cooperate.

In other words, this was legalized extortion: "That's an awfully nice career you have there-- would be a shame for something to happen to it. Now how's about you hand over those photos?"

That's not how it should work. The police make an official request for the photos, if the photographer refuses, when the case goes to court, a subpoena is issued, and if the photographer still refuses, he's held in contempt of court.

THAT is a legal process. What actually happened is government assisted extortion.

I took advice from the National Union of Journalists, who advised that there is a standard procedure in such cases: The police issue what is known as a production order, then the photographer either co-operates or the union contests the order. We told the police that the photos wouldn’t be handed over voluntarily. The only copy of the photos was placed in a secure off-site location.

It was at this point that events took an unexpected turn. The police chose not to issue a production order. Instead, the Procurator Fiscal (the Scottish equivalent of the Crown Prosecution Service in England, or the District Attorney in the United States) applied for a warrant to raid my home and seize “if necessary by force” all of my electronic equipment.

It sounds like there was more to his discussions with the police than he lets on here, and he doesn't say whether he told the police that he'd moved the photographs offsite. I get the impression he was being a dick about it so the prosecutor (not the police) got a warrant to seize everything that might contain the photographs instead of just the pictures.

Doing so would have set a dangerous precedent and would compromise the impartiality of myself and the other press photographers who work at the court. It's quite foreseeable that one photographer handing over photos would endanger all other photographers at the court as we may be perceived as informers or allies of the police.

In French, an umlaut indicates that the vowel is to be separately pronounced, as opposed to being pronounced as part of a dipthong (see Noël). In this instance it indicates that the pronunciation is "co-op" as opposed to "coop" as in "chicken coop". That said, an umlaut is not a component of English so who knows why they are using it.

I've heard of another rule. One third "it's a job", one third "I want to do good" and one third "I want to dominate".That's one reason never to give in to the idea of 'we are here to protect you so give us more power'.The other reason is that even if they're all good guys, the system can still go bad. Note that in this case the prosecutor has gone bad. The police are just doing their job.

I never understood why people living in totalitarian regimes complain about not being able to have free speech. Right now you have the ability to leave your country and go to one where you can do your job without being persecuted (as much). Let the UK slowly shrivel with its backwards laws and misguided ideals. It will naturally crumble when its citizens won't be able to support it.

Maybe because he would rather stay and fight those destroying his native country that he loves rather than flee and allow the descent into totalitarianism to proceed unopposed? To where will people flee when the last relatively-free nation(s) joins other less-free nations (the world's majority) in oppressing the people? Fleeing is a temporary solution at best, and submission to tyranny at worst.

There are only a small handful of nations which are relatively "free". We're each already at our 'Alamo' and we'd

"purchase an insurance policy against this for a relatively modest periodic fee"Insurance policies have exceptions. It wouldn't surprise me if they made seizure by the authorities one of them.Even if that isn't the case initially, the fact that the warrant remains open means his gear can be seized over & over.How many times would Lloyd's or Stiff Upper Lip insurers replace his stuff within, for example, a 6 month period?Once, twice, weekly?

does this asshole knows it's impossible o erase data from a memory card?

LOL, a memory card is non-magnetic storage, it's all electrical. You can fill up the entire card with other files, it'll write over all the old content. There is no magnetic residue left over like the old harddisk system with a spinning magnetic disk where you could find earlier data due to misalignement over the years.